They are prohibited from giving federal immigration agents access to non-public areas of the workplace or employee records without a judicial warrant or subpoena;

They are required to give employees and union representatives (if any) notification before and after I-9 inspections; and

They cannot reverify the immigration eligibility of employees to continue working unless mandated by federal law.

Access to Non-Public Areas of the Workplace or to Employee Records

In order for a federal immigration agent to be able to access non-public areas of the employer’s workplace, the agent must present an warrant issued by a judge. An administrative warrant signed by an Department of Homeland Security (DHS) officer does not suffice. The IWPA law provides that an employer can not voluntarily permit a federal immigration agent to enter these areas without a warrant.IWPA also prohibits employers from sharing employee records with a federal immigration agent unless they first present a subpoena or a judicial warrant.
However, the requirement that the agent present a subpoena or a judicial warrant is waived where the agent serves the employer with a Notice of Inspection (NOI) to review the employer’s I-9 forms and attached documents.
Required Notifications Before and After I-9 Inspections

Upon receiving a Notice of Inspection, an employer is required by IWPA to post a notice informing it’s employees (and their union representative, if any) of the NOI within 72 hours. The notice must be in the language or languages normally used to communicate employment-related matters. The posting notice must contain the following information:

The name of the federal immigration agency conducting the inspection;

The date that the NOI was received by the employer;

The nature of the inspection to the extent known; and

A copy of the NOI.

The California Labor Commissioner is obligated to issue a standard posting notice by July 1, 2018. Until then, employers and their attorneys should create their own posting notices.
Within 72 hours after receiving the results of the I-9 inspection, the employer must provide each “affected employee” (and their union representative, if any) with a copy of the written results and the obligations of the employer and the employee arising from the results of the inspection. An affected employee is one who lacks proper work authorization documents or whose documents have been found by the federal immigration agency to be deficient. This notice must be hand-delivered, or if this is not possible, delivered by mail.
This notice must contain the follow information:

A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee;

The time period for correcting any potential deficiencies identified by the immigration agency;

The time and date of any meeting with the employer to correct any identified deficiencies; and

Notice that the employee has the right to representation during any meeting scheduled with the employer.

Reverifying Employment Eligibility

IWPA prohibits employers from reverifying the employment eligibility of current employees at a time or manner not required by federal law. Employers are required to conduct reverification before an employee’s existing work authorization expires.
This provision creates problems for employers who wish to conduct internal I-9 audits to rectify any deficiencies in their I-9s.
Penalties for IWPA Violations

IWPA violations can result in civil fines of up to $10,000.
A violation of the reverification provision can lead to a penalty of up to $10,000.
Failure to satisfy any of the other provisions can result in penalties ranging from $2,000 up to $5,000 for a 1st violation, and from $5,000 to $10,000 for any subsequent violations.
IWPA Advice for Employers

IWPA can prevent some California employers from becoming compliant with federal immigration laws.
For the past 30+ years, we have advised employers to perform internal audits of their I-9 forms in order to comply with Federal immigration laws and to avoid huge fines for I-9 violations. However, IWPA penalizes California employers who audit and fix deficiencies in their I-9 forms. Now, many employers would well advised to sign up for the E-Verify program allow this will not cure any past mistakes in completing I-9 forms.
Employers need to properly train their human resource staffs what to do in case of a visit by federal immigration agents. If an HR employee is unable to distinguish between an ICE agent and a person working for the FDNS or between an administrative and a judicial warrant, this could have disastrous consequences.
In addition, HR staff should be trained in how and when to post notices when a Notice of Inspection is received and how to notify affected employees (and union representatives, if any) of the results of a federal I-9 audit. They should also be aware of when I-9 forms can be reverified and when it is a violation of IWPA to do so.
Related Pages

These silent raids have increased from virtually zero under the previous administration to over 7,500 under President Obama.

The number of employers arrested by ICE for criminal immigration violations so far this year is over 100 and we are only in May. The amount of administrative fines levied against employers in 2012 is quickly approaching $5,000,000.

In the words of Senator Dianne Feinstein (D-CA), these I-9 audits "are going to decimate our farms and farm-dependent jobs".

And it isn't just farms. Who does our gardening, takes care of our kids and our elderly parents, and staffs our restaurants and hotels?

When politicians, particularly those on the far right, rail against "illegal aliens", they conveniently ignore the immigration status of those who wait on them, cook for them, park their cars and pick their fruits and vegetables.

Employers are not so lucky.

Under President Bush, there would be a big immigration raid once or twice a year with hundreds of workers arrested for using fake documents, prosecuted, jailed and deported. Deported only to return in a few days or weeks.

Under President Obama, it is the employers who must pay the piper. Few employers are farsighted enough to hire an attorney to perform an audit of their I-9 forms before they receive a Notice of Inspection from U.S. Immigration and Customs Enforcement (ICE). However, once ICE descends on an employer, frantic phone calls are made to immigration lawyers. Often, this is too little, too late. Many employers, even those who faithfully follow the I-9 requirements, are forced to fire a substantial portion of their workforce.

What is the answer to this government-enforced madness?

Representative Lamar Smith (R-TX), Chairman of the House Judiciary Committee advocates the Big Government approach. Instead of I-9 forms, "we should replace this outdated system with E-Verify, a successful Web-based program that quickly identifies illegal immigrants working in the U.S..."

Even for true believers who think that E-Verify works with amazing accuracy and limited intrusion into the workplace, it ought to be obvious that one significant result of making this system mandatory would be that millions of people would lose their jobs.

And who then would do the work that makes our economy run? Would unemployed Americans work the fields? How many laid off workers would take a job making beds at a hotel or washing plates in a restaurant?

On July 9, the Senate, by a vote of 84 to 6, passed a DHS funding bill which includes a variety of immigration enforcement and benefits measures. The measure now goes to a House-Senate Conference Committee which must reconcile this bill with a funding measure previously passed by the House of Representatives which contains none of the immigration amendments added by the Senate.

ENFORCEMENT PROVISIONS

The Senate adopted an amendment offered by Senator Jim DeMint (R-SC) to provide that the DHS must complete 700 miles of actual fencing along the U.S.- Mexican border by the end of fiscal year 2010. Despite being funded for several years, the DHS has only managed to
erect a fraction of this amount.

The bill also includes an amendment by Senator David Vitter (R-LA) which is aimed at preventing the DHS from rescinding the "No-Match" rule. Secretary Napolitano had announced her intention to do so earlier this week. This rule would require employers to fire workers who are unable to resolve discrepancies in their Social Security Records.

The bill also includes an amendment by Senator Jeff Sessions (R-AL) which would effectively make the "E-Verify" program permanent for federal contractors. Not only would "E-Verify" be used to check the immigration status of new hirees, it would also apply to existing employees who are assigned to work under a federal contract. Before the Sessions' amendment passed, 10 Democrats joined most of the Republican Senators in voting for a procedural motion. The House bill would extend the "E-Verify" program, but only for a period two years.

However, both the mandatory "E-Verify" program for federal contractors and the implementation of the "No-Match" rule have both been enjoined by a Federal Court order since 2007. Therefore, it is not clear that either provision of the Senate bill would become effective even if they remain in the final bill after a House-Senate Conference Committee meeting, and are signed into law.

The Senate bill also contains an amendment by Senator Charles Grassley (R-IO) which allows employers, for the first time, to use the "E-Verify" program to screen existing employees as well as new hires.

DHS spokesman Matt Chandler criticized these amendments. He stated that they "are designed to prevent real progress on immigration enforcement and are a reflection of the old administration's strategy: all show, no substance."

BENEFITS PROVISIONS

The Senate also adopted two amendments offered by Senator Orin Hatch (R-UT). The first would eliminate the "widow's penalty". This would allow foreign-born widows and orphans to remain eligible for permanent residence even when the U.S. citizen spouse/parent dies before they achieve such status. The second would extend the "Conrad 30" J waiver program for physicians and the religious worker program for non-ministers until September 30, 2012. Currently, both programs are due to expire on September 30, 2009.

Finally, the Senate bill includes an amendment by Senator Patrick Leahy (D-VT) which would make the EB-5 Regional Center Investor program permanent. Currently, the program is due to expire on September 30, 2009.

COMMENTARY

What should we make of the Senate's sudden interest in adding far-reaching immigration amendments to an appropriations bill?

Joanne Lin, ACLU Legislative Counsel, states, with regard to the "No-Match" rule, that "while the Senate might think it has taken a step to fix illegal immigration, it has actually set into motion a rule that will jeopardize the jobs of tens of thousands of U.S. citizens who could be unjustly fired under the rule due to SSA database errors."

Mary Giovagnoli of the Immigration Policy Center is not impressed by many of the Senate's actions. She states that "enforcement-only amendments win on the Senate floor -- bad policy, but great political theater. Unfortunately, political theater is often hard for politicians to resist when they are dealing with complex issues that defy simple solutions."

We link to her analysis of the enforcement provisions of the Senate bill and to the ACLU's press release from our "Media" page at

Since Senator Charles Schumer (D-NY) has promised to introduce a comprehensive immigration reform bill by Labor Day, we hope that the most controversial immigration amendments to the DHS appropriations bill will be stricken by the House-Senate Conference Committee. Perhaps it would be better if major changes in our immigration laws were made after legislative hearings and an opportunity for Members of Congress to examine the arguments for and against each measure.